RE: Re-evaluation of Open Records Decision No. 574 (1990) regarding the scope
of the attorney-client privilege under section 552.107(1) of the Government
Code; whether section 552.101 of the Government Code also encompasses
the attorney-client privilege; whether the attorney-client privilege is
mandatory and compelling for purposes of the Public Information Act; and
related questions. (ORQ-40)

AUTHORITY

Under section 552.011 of the Government Code we consider the scope of the
section 552.107(1) exception, and related questions pertaining to the attorney-client privilege
in the context of the Public Information Act (the "Act"). (1)

THE PROPER EXCEPTION FOR THE ATTORNEY-CLIENT PRIVILEGE

Recent case law, without analysis, suggests that the attorney-client privilege may be asserted
under either section 552.107(1) or section 552.101 of the Government Code. (2) While
recognizing that section 552.107(1) specifically incorporates the privilege into the Act, one
court states that the "catch-all provision of Section 552.101 certainly includes information
governed by the attorney-client privilege." (3) Prior to 1990, this office had also construed the
statutory predecessor to section 552.101 to incorporate the attorney-client privilege. (4) But
in 1990, this office concluded that section 552.101 does not encompass discovery privileges
in general. (5) Unlike "confidential" information to which section 552.101 applies, the public
distribution of "privileged" information by a governmental body, as holder of the privilege,
does not implicate criminal penalties under the Act. (6)

The Texas attorney-client privilege is found at Rule 503 of the Texas Rules of Evidence. (7)
In a recent case, the Texas Supreme Court held that the Texas Rules of Evidence, as well as
the Texas Rules of Civil Procedure, comprise "other law" that may make information
"confidential" under section 552.022 of the Act. (8) The case holds that the terms "confidential
under other law" in section 552.022 of the Act include "privileged" information. (9) But in the
case, the section 552.101 exception was not at issue. Notably, section 552.101's language
differs from that of section 552.022. Unlike section 552.022, section 552.101 does not
employ the terms "confidential under other law." Section 552.101 states that it excepts from
disclosure information that is "confidential by law, either constitutional, statutory, or by
judicial decision." (10) We find no authority to support a conclusion that the Texas Rules of
Civil Procedure or the Texas Rules of Evidence are constitutional law, statutory law, or
judicial decisions so as to fall within section 552.101's purview.

Section 552.101's language of "confidential by law, either constitutional, statutory, or by
judicial decision" refers to information that a governmental body may not choose to release, (11)
and the improper disclosure of which results in criminal penalties under the Act. (12) Thus,
when section 552.101 applies, the Act prohibits the governmental body from disclosing the
information. Information subject to the attorney-client privilege is not confidential in this
sense. The privilege rests with the client governmental body, and like any client, the
governmental body is free to waive it. Accordingly, if in the open records ruling process the
attorney-client privilege is asserted under section 552.101, this office shall consider it an
assertion of the more specific section 552.107(1) exception. (13)

THE SCOPE OF THE SECTION 552.107(1) EXCEPTION

Section 552.107(1) excepts from disclosure "information that the attorney general or an
attorney of a political subdivision is prohibited from disclosing because of a duty to the client
under" the Texas Rules of Evidence or the Texas Disciplinary Rules of Professional Conduct
(the "ethics rules"). Rule 1.05 of the ethics rules generally imposes a duty of confidentiality
on an attorney regarding client information. (14) Confidentiality under this rule applies to
"privileged information" (15) and "unprivileged client information," defined as "all information
relating to a client or furnished by the client" that is "acquired by the lawyer during the
course of or by reason of the representation of the client." We have received arguments that
the plain language of section 552.107(1) necessarily protects any information that meets this
definition. We disagree.

This plain language argument fails to note that ethics rule 1.05 contains an exception to
confidentiality, permitting disclosure of client information "[w]hen the lawyer has reason to
believe it is necessary to do so in order to comply with . . . other law." (16) In the absence of
any indication to the contrary, such "other law" necessarily includes the Act, the purpose of
which is to impose a duty under law on a client governmental body to, generally, disclose its
information, (17) and which specifically requires that "public information" (18) be "available to the
public at a minimum during the normal business hours of the governmental body." (19) Thus,
a governmental body's information that is otherwise made confidential solely under rule 1.05
is subject to the rule's "other law" exception to confidentiality when it is requested under the
Act. (20) Section 552.107(1), therefore, does not except from disclosure all information that a
governmental attorney may otherwise have a duty under ethics rule 1.05 to maintain as
confidential. (21)

An attorney for a governmental body has an independent duty of confidentiality for
information subject to the attorney-client privilege as defined in Texas Rule of
Evidence 503. (22) Rule 503 contains no exception to confidentiality like the exception in
ethics rule 1.05. Thus, information that is protected under Texas Rule of Evidence 503 is
excepted from disclosure under section 552.107(1).

In comments to this office, one governmental body has expressed concern that attorneys for
governmental bodies may be subject to disciplinary action for allegedly violating ethics
rule 1.05 due to the release of information under the Act. We believe this concern is
unwarranted. First, the release of information in compliance with the Act is made by the
governmental body through its officer for public information. (23) Moreover, this precise issue
was addressed in a 1996 ethics opinion that, in light of the applicability of the Act's
disclosure requirements, declined to decide whether information requested under the Act was
confidential under ethics rule 1.05. (24) The opinion specifically referred to the rule's "other
law" exception to confidentiality, as well as comment 22 of the rule, which recognizes that
"a lawyer may be obligated by other provisions of statutes or other law to give information
about a client." (25)

But in restricting the scope of section 552.107(1) to "privileged" information, this office has
engaged in a practice of conducting a word-by-word examination of information in
documents, granting the exception only to the very specific information comprising a "client
confidence" or attorney advice, opinion, or analysis. (26) We now reconsider this practice.

Texas courts protect from discovery under rule 503 the entirety of a "communication" that
is confidential under the rule. (27) A governmental body has as much right as a private
individual to consult with its attorney without risking the disclosure of communications
protected by the attorney-client privilege. (28) Thus, we believe the holdings in the above-cited
cases generally apply to the scope of section 552.107(1)'s protection. (29) We therefore
conclude that section 552.107(1) generally excepts an entire communication that is
demonstrated to be protected by the attorney-client privilege as defined in Texas Rule of
Evidence 503.

SECTION 552.022 INFORMATION, INCLUDING ATTORNEY FEE BILLS

Section 552.022 provides for eighteen categories of information that are "not excepted from
required disclosure" under the Act "unless they are expressly confidential under other law[.]"
Among these categories is "information that is in a bill for attorney's fees and that is not
privileged under the attorney-client privilege[.]" (30) This language makes clear that the Act
does not permit the entirety of an attorney fee bill to be excepted on the basis that the fee bill
contains or is an attorney-client communication. (31) Thus, information in an attorney fee bill
may only be withheld to the extent the particular information is demonstrated to be subject
to the attorney-client privilege, or is otherwise confidential under other law. (32)

With regard to all section 552.022 information, including attorney fee bills, it is also
important to note that section 552.107(1) is an exception to disclosure under the Act and not
"other law" that makes information "expressly confidential." Thus, the appropriate law for
a claim of attorney-client privilege for section 552.022 information is Texas Rule of
Evidence 503 and not section 552.107(1). The Texas Supreme Court has concluded that the
Texas Rules of Evidence comprise "other law" for purposes of section 552.022. (33) This
decision notes that Texas Rule of Evidence 503 employs the term "confidential," such that
the rule constitutes "other law" that may make information "expressly confidential" for
purposes of section 552.022. (34) However, for information that is not subject to
section 552.022, the appropriate exception for a claim of attorney-client privilege is
section 552.107(1). This is because such information is not excepted from disclosure except
to the extent that one or more exceptions under the Act applies to it. (35)

DEMONSTRATING THE ATTORNEY-CLIENT PRIVILEGE

A governmental body carries the burden in the open records ruling process of demonstrating
to this office how and why information is excepted from required public disclosure. (36) The
applicability of the attorney-client privilege to particular information depends more on the
facts surrounding the creation and maintenance of the information than on its content. (37) If
a governmental body fails to provide this office sufficient facts pertaining to the creation and
maintenance of the information so as to affirmatively demonstrate the privilege with respect
to each document or record at issue, we cannot assume such facts. (38) The governmental body
may thereby fail to meet its burden. (39) When asserting the attorney-client privilege, a
governmental body's burden necessarily includes demonstrating the elements of the
privilege. We therefore next examine certain elements of the Texas privilege. (40)

The privilege applies only to information that is communicated. (41) Its purpose is to protect
the unrestrained exchange of information between attorney and client. A governmental body
therefore must demonstrate that the information constitutes or documents a communication. (42)

The communication must have been made "for the purpose of facilitating the rendition of
professional legal services" to the client governmental body. (43) The privilege does not apply
when an attorney or representative is involved in some capacity other than that of providing
or facilitating professional legal services to the client governmental body. (44) Governmental
attorneys often act in capacities other than that of professional legal counsel, such as
administrators, investigators, or managers. So the mere fact that a communication involves
an attorney for the government does not demonstrate this element. The governmental body
is, therefore, obligated to inform this office of the attorney's or representative's role with
regard to each communication at issue. Such explanation should appropriately include a
description of the nature of the professional legal services to which each communication
pertains and how such legal services are for the client governmental body. (45)

The privilege applies only to communications between or among clients, client
representatives, lawyers, and lawyer representatives. (46) Thus, a governmental body must
inform this office of the identities and capacities of the individuals to whom each
communication at issue has been made. Absent such information, this office cannot
necessarily assume that the communication was made only among the categories of
individuals identified in rule 503, and the governmental body will thereby have failed to
demonstrate the privilege. (47)

A "representative of the client" is either: 1) "a person having authority to obtain professional
legal services, or to act on advice thereby rendered, on behalf of the client," (48) or 2) "any
person who, for the purpose of effectuating legal representation for the client, makes or
receives a confidential communication while acting in the scope of employment for the
client." (49) Individuals meeting the first definition are members of the client entity's "control
group," which is typically limited to "upper echelon" employees. (50) The second definition
incorporates the "subject matter test" for determining who qualifies as a client
representative. (51) A Texas court of appeals states:

Under the subject matter test, an employee's communication is deemed to be
that of the corporation/client if: the employee makes the communication at
the direction of his superiors in the corporation and where the subject matter
upon which the attorney's advice is sought by the corporation and dealt with
in the communication is the performance by the employee of the duties of his
employment.

In re Monsanto Co., 998 S.W.2d at 922. In applying this test, the court further explained:

We recognize that it might be argued that all communications between
corporate representatives could be claimed as privileged on the basis that "the
legal department can better represent us if we keep them informed." We
reject that assertion. We do not believe that it is necessary for the legal
department to be advised of every development out in the field, no matter
how minute. Thus, we applied common sense to the contents of the
documents.

Id. at 930 (emphasis added). Thus, a governmental body may not properly claim the
privilege for all manner of communications between its employees. Rather, much depends
on the purpose or purposes of the communication. The communication must be shown to
be to, from, or between representatives of the client governmental body, made for the
purpose of effectuating legal representation for it, and the subject matter must pertain to the
performance by each client representative of the duties of his or her employment. The
communication itself may demonstrate these factors, but often they are not revealed in the
information itself. In such instances, the governmental body must provide this office
explanatory information.

A "representative of the lawyer" is either: 1) "one employed by the lawyer to assist the
lawyer in the rendition of professional legal services," or 2) "an accountant who is reasonably
necessary for the lawyer's rendition of professional legal services." (52) The first definition
includes, for example, a private investigator hired by the attorney to assist the attorney in
providing professional legal services. (53) But where a communication is shown on its face to
have been shared with such an outside party, the governmental body must explain how the
individual qualifies as a representative of the lawyer or client. Absent such an explanation,
this office cannot assume that a communication to an outside party is privileged. As for the
second definition, notably, communications with an accountant for the purposes of obtaining
accounting services are not protected by the attorney-client privilege. Rather, such
communications must be for the purpose of facilitating the lawyer's rendition of professional
legal services to the client governmental body. (54) Thus, this office must be provided an
explanation of the purpose and circumstances of communications involving an accountant
in order to assess whether the attorney-client privilege applies.

Sometimes the information at issue is indicated on its face to have been communicated
among attorneys for and representatives of different governmental bodies as clients, or
involving a non-governmental body as client. This does not necessarily mean that the
privilege does not apply, but in such instances the communication must have been made "in
a pending action and concerning a matter of common interest" to the respective clients. (55) But
absent an explanation of the action to which the communication at issue pertains, whether
the communication was made when the action was pending, and how the communication
concerns a matter of common interest to the involved clients, this office cannot assume that
the communication is subject to the protection of the privilege.

The attorney-client privilege applies only to a confidential communication, (56) meaning it was
"not intended to be disclosed to third persons other than those to whom disclosure is made
in furtherance of the rendition of professional legal services to the client or those reasonably
necessary for the transmission of the communication." (57) A governmental body must
demonstrate to this office that each communication at issue meets this definition. Whether
a communication meets this definition depends on the intent of the parties involved at the
time the information was communicated. (58) Such intent may be inferred from the
circumstances, and an indication of such intent may be reflected in the communication
itself. (59) But such intent may not be revealed in the communication itself, in which case the
governmental body should make appropriate representations to this office that relate to the
intent of those involved in each communication at the time the information was
communicated. (60) Such representations would be especially important when, for example,
it is unclear on the face of the communication whether the persons involved are limited to
attorneys, clients, and representatives of either, as defined in Rule 503. (61)

Because the client may elect to waive the privilege at any time, each communication must
also have remained confidential. Thus, for example, where a document, record, or fee bill
entry is indicated to have been voluntarily disclosed to an opposing party, the attorney-client
privilege has generally been waived. (62) Especially in instances where there are indications of
disclosure subsequent to the communication, a governmental body should inform this office
how the confidentiality of the communication has been maintained.

APPLYING THE ATTORNEY-CLIENT PRIVILEGE UNDER THE ACT

The attorney-client privilege in the context of the open records ruling process presents certain
additional considerations that are not present in the discovery context. Next, we address an
assertion of the privilege in relation to section 552.302 of the Government Code. We then
conclude by addressing the privilege with respect to section 552.301(a) of the Government
Code.

If a governmental body fails to properly comply with section 552.301 of the Government
Code, section 552.302 provides that the information "must be released unless there is a
compelling reason to withhold the information." This office has long held that a "compelling
reason" is demonstrated only if the information is confidential by law -- meaning
section 552.352 prohibits the governmental body from releasing it -- or if the release of the
information implicates third party interests. (63)

As previously noted, although Texas Rule of Evidence 503 employs the term "confidential,"
a governmental body as client has the discretion to waive its "confidentiality" interest in its
attorney-client privileged communications and release such information requested under the
Act. And a governmental body's voluntary release of the information does not implicate
section 552.352, the provision under the Act imposing criminal penalties for releasing
confidential information. Thus, notwithstanding Rule 503's use of the term "confidential"
and section 552.107(1)'s reference to the rule, neither the exception nor the rule makes
information confidential in the sense that the governmental body is thereby prohibited from
releasing the information. A governmental body may in its discretion assert
section 552.107(1) for information that is not subject to section 552.022, or Texas Rule of
Evidence 503 for information that is subject to section 552.022, but it may also choose to
release the information instead. (64) Accordingly, neither type of assertion demonstrates a
"compelling reason" under section 552.302 as prohibiting the governmental body's release
of the information.

In Open Records Decision No. 630 (1994), this office concluded that the attorney-client
privilege does not under any circumstances demonstrate a compelling reason under
section 552.302. (65) However, as noted above, a separate basis for demonstrating a compelling
reason is that the release of the information implicates third party interests. (66) Thus, a
compelling reason under section 552.302 may be demonstrated for attorney-client privileged
communications if it is shown that the release of the information would harm a third party.
Harm to the interests of the governmental body that received the request is not a compelling
reason. When section 552.302 is triggered, the governmental body carries the burden of
demonstrating a compelling reason, and this office must decide the issue on a case-by-case
basis. Open Records Decision No. 630 is overruled to the extent it conflicts with this
conclusion.

Section 552.301(a) requires a governmental body, absent a "previous determination," to
request a decision from this office anytime it seeks to withhold responsive information under
the Act. (67) In Open Records Decision No. 673 (2001), we announced the criteria for a
decision from this office to constitute such a previous determination. Prior to that decision
and without analysis, guidance, or discussion, a Texas Court of Appeals in 1999 opined that
Open Records Decision No. 574 constituted a previous determination on which the
governmental body in that case could rely, and that the governmental body therefore was not
required to seek a decision from this office. (68) Among the criteria announced in Open
Records Decision No. 673 for such a previous determination is the requirement that the
decision explicitly provide that, in response to future requests, the governmental body is not
required to ask this office in order to withhold the type of information at issue. (69) Open
Records Decision No. 574 does not meet this requirement. Absent a previous determination
as defined in Open Records Decision No. 673, a governmental body must request a ruling
from this office if it wishes to withhold information based on a claim of attorney-client
privilege. (70) Governmental bodies are thus cautioned against using the Hart case as a basis
for withholding information from the public under the Act without seeking a decision from
this office.

SUMMARY

The attorney-client privilege is properly asserted under section 552.107(1) of
the Government Code, which excepts from required public disclosure a client
governmental body's privileged communications, as defined in Texas Rule
of Evidence 503. The exception will generally apply to an entire
communication, except in the case of attorney fee bills. Although an
assertion of section 552.107(1) or Texas Rule of Evidence 503 is
discretionary and a governmental body client may thus release the
information in lieu of asserting the privilege, a successful assertion of the
attorney-client privilege may nevertheless demonstrate a compelling reason
under section 552.302 of the Government Code where release of the
information implicates third party interests. Whether a compelling reason is
demonstrated must be decided by this office on a case-by-case basis. The
applicability of the attorney-client privilege to information requested under
the Act also must be decided by this office on a case-by-case basis.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.First Assistant Attorney General

NANCY FULLERDeputy Attorney General - General Counsel

KATHERINE MINTER CARYDivision Chief, Open Records Division

GREGORY T. SIMPSONDeputy Chief, Open Records Division

Prepared by:

Michael Garbarino
Assistant Attorney General, Open Records Division

1. Unless otherwise specifically noted, references to section numbers in this decision are to sections
contained in chapter 552 of the Government Code.

3. Hart, 995 S.W.2d at 963 n.2; see also Garland v. Dallas Morning News, 22 S.W.3d at 360 n.5.
Notably, neither the Hart nor the Garland court was squarely confronted with the issue of which exception or
exceptions under the Act properly incorporate an assertion of attorney-client privilege. Rather, the mention in
both cases that section 552.101 may also incorporate the privilege was ancillary to the actual issues addressed
in each decision.

6. See Tex. Gov't Code § 552.352 (declaring it an offense and providing for a fine, jail time, or both
if a person distributes information that is considered "confidential" under the terms of the Act).

9. Id. at 334; but see Tex. Gov't Code § 552.007 (governmental body may not choose to release
information that is "confidential under law"); id. § 552.352 (providing criminal penalties for distribution of
information considered "confidential" under the terms of the Act).

20. Information that is subject to the Texas attorney-client privilege is not made confidential solely under
Rule 1.05. Rule 503 of the Texas Rules of Evidence also makes such information confidential. See Tex. R.
Evid. 503.

21. As this office noted in 1990, the ethics rules specifically contemplate, in some circumstances,
different treatment of government attorneys. The fact that the government attorney's client is subject to the Act
is one such circumstance. See Open Records Decision No. 574 at 4 (1990).

28. Markowski v. City of Marlin, 940 S.W.2d 720, 726 (Tex. App.--Waco 1997, writ denied); see also
Tex. R. Evid. 503(a)(1) (public or private entity is considered a "client" for purposes of application of attorney-client privilege).

29. This conclusion is supported by a recent case addressing the applicability of the attorney-client
privilege, in the context of the Act, to a report requested under the Act that had been prepared by an attorney.
The Third Court of Appeals found that section 552.107(1) excepted the entirety of the report. Harlandale
I.S.D. v. Cornyn, 25 S.W.3d 328 (Tex. App.--Austin 2000, pet. denied).

31. This is an express legislative departure from case law pertaining to the applicability of the attorney-client privilege to attorney fee bills in the litigation discovery context. Where information in an attorney fee
bill is demonstrated to be privileged to the satisfaction of the court, the entirety of the fee bill is protected. See,
e.g., Clark v. American Commerce Nat'l Bank, 974 F.2d 127 (9th Cir. 1992).

32. A governmental body must, of course, comply with the Act's procedural requirements if it wishes
to withhold information in an attorney fee bill on the basis of attorney-client privilege. These include marking
the "parts of the copy" in the fee bill for which the privilege is asserted, and submitting written comments in
support of the privilege for each such marking. See Tex. Gov't Code § 552.301(e)(1)(A), (2); see also
Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 997 P.2d 681 (Kan. 2000) (narrative statements
contained in attorney fee bills are not per se exempt from disclosure under state open records act; the
governmental body has the burden of demonstrating how the attorney-client privilege applies to each specific
narrative statement for which the privilege is asserted).

36. Id. § 552.301(e)(1)(A) (a governmental body must submit to this office, among other information,
written comments stating the reasons why the stated exceptions apply that would allow the information to be
withheld).

38. We acknowledge the concern that comments submitted to this office pertaining to the
communications a governmental body seeks to protect may reveal the content of such communications. Where
this is a concern, a governmental body may submit such comments in a separate brief, marked as confidential.
To the extent such comments reveal the information at issue, this office is prohibited from disclosing the
comments. See Tex. Gov't Code § 552.304.

39. In re Monsanto Co., 998 S.W.2d 917, 926 (Tex. App.--Waco 1999, orig. proceeding) (the mere
listing of the privilege in a response or privilege log does not prove that privilege; proof of the facts that justify
the claim of privilege is necessary).

42. In this respect, the attorney-client privilege is sometimes confused with the work product privilege.
Information need not have been communicated to constitute work product. See Tex. R. Civ. P. 192.5; see also
Open Records Decision No. 647 (1996).

62. See, e.g., Open Records Decision No. 658 at 7 (1998) (section 552.107(1) did not except from
disclosure a governmental body's mediated final settlement agreement, which the opposing party had signed).

69. See Open Records Decision No. 673 at 7-8 (2001) (criteria for previous determinations of the
second type).

70. See also Tex. Gov't Code § 552.326 (prohibiting an assertion of section 552.107(1) in a suit filed
under the Act unless the exception was properly asserted in this office's open records ruling process).